State ex rel. Yokum v. Adams
| Decision Date | 12 July 1960 |
| Docket Number | No. 12005,12005 |
| Citation | 114 S.E.2d 892,145 W.Va. 450 |
| Parties | STATE ex rel. Thomas YOKUM, Jr. v. D. E. ADAMS, Warden. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. The provision of Code, 61-11-19, as amended by Chapter 26, Acts of the Legislature, Regular Session, 1939, as amended by Chapter 31, Acts of the Legislature, Regular Session, 1943, with regard to the manner in which a court may be informed that a person who stands before it convicted of a felony, and awaiting sentence, has been previously convicted of an offense or offenses punishable by confinement in a penitentiary, is mandatory, and a written information, setting forth the record of the previous conviction and sentence, or convictions and sentences, must be filed with the court before an additional sentence, under the provisions of Code, 61-11-18, as amended, may be imposed.
2. In the absence of a written information filed with the court, setting forth the previous conviction and sentence, or convictions and sentences, an additional sentence imposed, under the provisions of Code, 61-11-18, as amended by Chapter 26, Acts of the Legislature, Regular Session 1939, as amended by Chapter 31, Acts of the Legislature, Regular Session, 1943, is void.
3. When a prisoner has commenced serving a term of imprisonment under sentence by a court, and is convicted and sentenced for another offense at a subsequent term of that court, the effective date of such subsequent sentence being designated as a day previous to the expiration of the first sentence, the second sentence thus imposed runs concurrently with the first sentence from the effective date of the second sentence and the prisoner will be entitled to discharge at the expiration of the maximum term. Philip B. Hill, Charleston, for relator.
W. W. Barron, Atty. Gen., W. Bernard Smith, Asst. Atty. Gen., for respondent.
BROWNING, President.
In this original proceeding in habeas corpus, the facts as alleged in the original and amended petitions, and as admitted in the return of the respondent, are as follows: Relator, Thomas Yokum, Jr., was twice indicted by the Grand Jury attending the Circuit Court of Pendleton County on April 21, 1959, the first indictment being for the alleged attempted murder of B. H. Swartz, the second for the alleged attempted murder of F. W. Armstrong. On May 12, 1959, he was found guilty by a jury of the attempt to murder B. H. Swartz, and on May 14, 1959, upon his admission that he was the same Thomas Yokum, Jr., who had been previously convicted of a felony in 1943, as orally suggested by the Prosecuting Attorney, was sentenced to a term of from 1 to 10 years in the State Penitentiary. At the subsequent July term of the Circuit Court of Pendleton County, relator was returned from the State Penitentiary to that court to stand trial upon the charge of attempted murder of F. W. Armstrong. Upon being found guilty by a jury, the Prosecuting Attorney orally suggested the previous convictions in 1943 and May 14, 1959, and on September 21, 1959, relator was sentenced to life imprisonment. Both charges of attempted murder arose at the same time and place when relator discharged a single shot from a 12 gauge shotgun at B. H. Swartz and F. W. Armstrong, members of the Department of Public Safety, when they attempted to place him under arrest upon a warrant charging the offense of assault and battery.
It is conceded that one of the prior felony convictions relied upon for the life sentence imposed on September 21, 1959, did not precede the commission of the principal offense. Therefore, the imposition of a sentence of life imprisonment was invalid under the provisions of Code, 61-11-18. State ex rel. Medley v. Skeen, Warden, 138 W.Va. 409, 76 S.E.2d 146, and previous decisions of this Court cited in the opinion thereof.
The record shows, and the Attorney General admits, the no written information was filed with the court prior to the sentencing of the petitioner of May 14, 1959, or on September 21, 1959. In each of the two indictments, the previous conviction of the petitioner in 1943 was set out in the indictment following the procedure in effect in this State prior to the amendment of Code, 61-11-19, by Chapter 31, Acts of the Legislature, Regular Session, 1943. Under the section, as amended, previous offenses are not to be alleged in the indictment. The section now provides, in part: ...
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